Bar News - April 9, 2004
Supreme Court at a Glance ~ February 2004
By: Kenneth G. Bouchard
Domestic Relations
In the Matter of Robert Jacobson and Kathleen Tierney, No. 2003-093
February 2, 2004: Reversed
- Whether RSA 458:35-c gives the Superior Court authority to order a parent to provide child support for a child who becomes disabled after turning 18 years of age. The Supreme Court holds that the statute does not provide for such authority.
In the Matter of Barbara M. Giacomini and Patrick A. Giacomini, No. 2002-716
February 2, 2004: Affirmed in part, vacated and remanded in part.
- Whether the trial court erroneously failed to hold respondent in contempt. The Supreme Court upheld trial court’s discretion.
- Whether the respondent’s "grossed -up wages" paid by his employer to cover taxes should have been reported as income. The Supreme Court upholds trial court’s discretion in not including it as income.
- Whether the Superior Court erred by collecting a factual finding inconsistent with its final ruling. The Supreme Court ruled no error.
- Whether RSA 458-C:1-:5, which became effective several months prior to the decree of divorce in this case required the trial court to calculate an arrearage in accordance with the support guidelines. The Supreme Court holds that the respondent failed to challenge the decree when it was issued and the Superior Court did not err in calculating the arrearage due under the decree.
- Whether the petitioner’s suit was barred by laches. The Supreme Court holds that it was not.
- Whether the trial court used the correct date to calculate modification of child support pursuant to RSA 458-C:3, IV(c). The Supreme Court holds that incorrect date was used.
In the Matter of Susan C. Barrett and John T. Coyne, No. 2003-101
February 3, 2004: Vacated and remanded
- Whether the Superior Court has the authority to order a parent to pay private secondary education expenses for a minor child - an issue of first impression. The Supreme Court holds that the court does have authority, but it must be based on a finding of "special circumstances".
- Whether the Superior Court could deviate from the child support guidelines absent "special circumstances". The Supreme Court holds that special circumstances are required.
- Whether the trial court properly held that the respondent was aware of the private school education within the appropriate statutory time limits. The Supreme Court upholds Superior Court finding that he was.
In the Matter of Jesper Gronvaldt and Claudia Gronvaldt, No. 2003-132
February 17, 2004: Affirmed
- Whether the trial court erred in finding that the divorce should not have been granted based on the fault ground of treating a spouse so as to seriously injure health or endanger reason. The Supreme Court finds sufficient facts to come within the statute.
- Whether the trial court erred in finding the respondent had suffered emotional abuse and distress in absence of expert testimony. The Supreme Court finds that expert testimony is not required.
- Whether there was sufficient evidence to support the trial court’s unequal distribution of marital assets. The Supreme Court finds that the evidence was sufficient.
- Whether the facts were sufficient for the award of alimony for five years. The Supreme Court holds that they were.
Criminal
State of New Hampshire v. Bortner, No. 2003-069
February 2, 2004: Affirmed
- Whether a cooperation agreement with the State was breached by the defendant later providing information that was not truthful, candid and complete in accordance with the agreement. The Supreme Court held that it was breached, and establishes the standard applied would be the same as that when the State allegedly breaches a plea bargain.
- Whether RSA 639:3,I is unconstitutionally vague. The Supreme Court holds that it is not.
- Whether the trial court adequately instructed the jury with respect to RSA 639:3,I. The Supreme Court holds that it did.
State of New Hampshire v. Stephen Merriam, No. 2003-273
February 13, 2004: Reversed and remanded
- Whether the police officers of the Town of Sanbornton had authority to arrest the defendant without a warrant when the offense was committed in the Town of Campton. The Supreme Court holds that RSA 105:4 allows police officers in one jurisdiction to make arrests even when the criminal conduct is alleged to have occurred in another jurisdiction. With respect to the warrant, the Supreme Court holds that Sanbornton had sufficient probable cause based on its reports from the Campton police department.
State of New Hampshire v. Ciro Scognamiglio, No. 2002-785
February 13, 2004: Affirmed in part, vacated in part, remanded for sentencing
- Whether the victim had sustained "serious bodily injury" under RSA 625:11,VI. The Supreme Court affirms jury finding.
- Whether the prosecutor committed misconduct in closing argument. The Court holds no misconduct.
- Whether the State introduced sufficient evidence to prove prior convictions such as to justify an extended term of imprisonment. The Supreme Court holds that it did not.
State of New Hampshire v. Robert Nelson, No. 2003-162
February 20, 2004: Affirmed
- Whether the defendant’s scanned images of the victim’s intimate photographs had "value" and constituted property of another (the victim). The Court upholds the trial court’s finding that the statutory requirements under RSA 637:2, I were met.
State of New Hampshire v. Steven Kidder, No. 2003-362
February 27, 2004: Affirmed
- Whether a defendant who is subject to a protective order in a domestic violence case can be found to have violated the order when his attorney makes contact with the victim. The Supreme Court holds that such contact does violate the protective order issued under RSA 173-B.
State of New Hampshire v. Denis Velez, No. 2003-078
February 27, 2004: Affirmed
- Whether the State should be allowed to introduce a tape-recorded statement taken by the police without also including the pre-Miranda statements made by the defendant. The Court ruled that it would not extend the complete statement rule to pre-Miranda statements.
- Whether the Superior Court erred in admitting a witness’s testimony taken from the first trial, which resulted in a hung jury, because the witness was allegedly unavailable for the second trial. The Court held that the witness’s testimony was harmless beyond a reasonable doubt because of the overwhelming evidence of guilt.
Insurance Coverage
State Farm Mutual Automobile Insurance Company v. Holyoke Mutual Insurance Company, No. 2003-213
February 3, 2004: Affirmed
- Whether a Massachusetts automobile liability policy and a New Hampshire automobile liability policy can be stacked for underinsured motorist benefits when Massachusetts law prohibits stacking. The Supreme Court holds that Massachusetts law does not prohibit stacking when a non-Massachusetts policy is involved.
- Whether State Farm’s coverage was excess to Holyoke’s. The Supreme Court holds that it was.
- Whether the trial court properly apportioned the tortfeasor’s credit between Holyoke and State Farm. The Supreme Court holds that allocation was correct, based on New Hampshire law and silent Massachusetts law.
Peerless v. Vermont Mutual, No. 2003-164
February 3, 2004: Reversed
- Whether the two policies "other insurance" clauses are mutually repugnant. The Supreme Court holds that they are and therefore each insurer is liable for its pro rata share of any settlement or judgment and share equally in defense costs.
Stephen Oliva v. Vermont Mutual Insurance Company, No. 2003-316
February 17, 2004: Reversed
- Whether an unrelated 20-year-old individual could be deemed to be "in care of" the named insured. The Court adopts Michigan case law and holds that the individual was not in the care of the insured.
Sherry Swain v. Employers Mutual Casualty Company, No. 2003-245
February 20, 2004: Affirmed
- Whether a commercial general liability policy offering liability coverage but not uninsured motorist coverage to "non-owned autos" without providing uninsured motorist coverage for such autos violates RSA 264:15, I. The Supreme Court holds that it does not.
Civil
Marianne Gutbier v. Hannaford Brothers Co. d/b/a Hooksett Shop ‘N Save, No. 2003-236
February 13, 2004: Reversed and remanded
- Whether a party who has no memory of an accident can bring an equitable petition to discover the defendant’s investigative file to determine whether there was a justifiable basis for bringing suit against the defendant. The Supreme Court holds that RSA 498:1 allows only for equitable jurisdiction when the party has no plain, adequate and complete remedy at law, and denies the petition in this case because the Superior Court discovery rules provide an adequate remedy.
Lyme Timber Company v. DSF Investors, LLC, No. 2003-312
February 17, 2004: Affirmed
- Whether New Hampshire had jurisdiction over the defendant. The Court holds that the defendant purposely availed itself of the privileges and protection of New Hampshire law, so that jurisdiction exists.
Duke/Fluor Daniel v. Hawkeye Funding, LP, No. 2003-173
February 26, 2004: Affirmed
- Whether a mechanic’s lien can be waived by contract. The Court concludes that it can.
General Linen Services, Inc. v. Franconia Investment Associates, LP, No. 2003-177
February 27, 2004: Reversed in part, vacated in part, remanded
- The proper standard to apply in interpreting a contract. The Court holds that when reasonable parties disagree as to the meaning and it is ambiguous, an objective standard should be used to determine what the parties meant.
- Whether the liquidated damages’ clause was valid. The Supreme Court holds that it was not because the damages were not difficult to provide for.
Attorney Discipline
Kersey’s Case, No. 2002-006
February 27, 2004: Disbarred
- Whether an attorney who violated two Supreme Court orders to turn over his client files and trust accounts should be disbarred. The Supreme Court holds that he should.
Kenneth G. Bouchard is a graduate of Boston College Law School, Yale University, and Tufts University. An attorney with the Hampton firm of Bouchard & Kleinman, P.A., his specialty is civil litigation. He has been a member of the NHBA since 1976.
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